H.R. 620 May Dramatically Undermine the ADA: Act Now

Editor's update March 8, 2018: As projected, the House of Representatives took up H.R. 620, the ADA Education and Reform Act. When the House voted on the bill, it passed 225-192.

The next step for this bill, which AFB strongly opposes, is to be introduced and considered in the US Senate. We do not want this to happen.

To forestall the bill's progress in the Senate, a group of Senators, led by Senator Tammy Duckworth of Illinois, has drafted a letter to tell Senators McConnell and Schumer not to bring forward H.R. 620 or any similar bill. As the leaders of the Senate, these two Senators have the power to choose which bills will be placed on the agenda. Since a vote on such a bill requires 60 votes, Senator Duckworth and others are seeking at least 41 senators to sign on to their letter indicating that they will oppose this bill and any like it. Right now, we need 11 more senators to sign on to the letter. You have a part to play in ensuring that these senators sign on.

Action Needed

We need people from every state to call their Senators to ask them to sign on to this bill, but if you live in one of the following states, we believe your call will have the most impact: Florida, Indiana, Maine, Michigan, Minnesota, Nevada, New Mexico, Oregon, Virginia, or Washington. Senators in these states have been identified as most likely to sign on, but have not yet done so.

Tell the staffer who answers the phone to ask the Senator to sign on to the "Duckworth ADA letter protecting the rights of people with disabilities." Let them know that disability rights are very important to you and that you want to protect the Americans with Disabilities Act and oppose H.R. 620.

Original Post

Congress has a bill before it, H.R. 620, that could be voted on before the end of the month, possibly even by Wednesday of this week. H.R. 620 is titled, “ADA Education and Reform Act of 2017,” and will have a profound, negative effect on the Americans With Disabilities Act (ADA).

About the ADA

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The ADA, which was first proposed in 1988, and signed into law 28 years ago, essentially provides for the equal treatment of individuals with disabilities and equal access to public areas in workplaces and the community. The ADA also affords the opportunity to individuals to file suit, if necessary, to initiate these changes. It does not, however, have a provision to file suit for damages other than the cost of legal fees—no one outside the legal profession is making money from ADA lawsuits.

The ADA has had the potential for providing access to public places we may not often think of, such as websites, or access to textbooks in digital formats. One notable example of this was a suit filed by the National Federation of the Blind, in 2009, against Arizona State University for deploying an inaccessible Kindle DX as a platform for textbooks. That version of the Kindle had no screen reader, so any students requiring access to the print using a screen reader, were out of luck. The suit was settled, ASU chose a more accessible platform, and Amazon incorporated a screen reader in later models, and developed an screen reader for the earlier models. This decision ultimately enabled greater access to textbooks for all students. By the time this suit was filed, the ADA had been around for 19 years, so the idea of "equal access" to these digital texts was hardly something new.

More recently, a suit was filed against Greyhound Bus Lines, in June 2017, by individuals in California, claiming that it is not possible to use their website, using a screen reader, to book travel. The alternative is to book the travel over the phone, but Greyhound then charges an additional service fee. Because the Greyhound website and apps are not accessible, anyone using a screen reader to access the website, is not only unable to book travel, but must pay a service fee! At the time of this lawsuit, the ADA had been in place for 27 years, so a request for equal access to their website should not have been a surprise, or an unreasonable request. It goes without saying doesn’t it, that denying access to your business’s services or products limits your potential customers?

Changes Proposed by H.R. 620

The changes to the ADA that H.R. 620 proposes include: requiring the written complaint be written in such legal detail that only someone with legal expertise could draft it; permit businesses six months to demonstrate an undefined "substantial progress," toward resolution; and deny access to legal resolution as long as this biannual "substantial" progress continues to be made. This means that the bill will remove the consequences for businesses with architectural barriers that violate the ADA until an individual with a disability is denied access and provides a specific legal notice describing the denial of access and nature of the barrier. The individual with a disability must then wait up to six months for the business to make “substantial progress” in removing the barrier.

Examples of Effect of Proposed Legislation

Let’s consider for a moment, the complaint against Greyhound. In spite of the fact that the law governing equal access to public places like websites has been on the books for nearly 28 years, they might have six months to make "substantial progress." Perhaps six months later all the images on the site have the appropriate alternative text required for screen readers, but users are still paying the service fee when placing a call to purchase tickets. After another six months, consumer can make a purchase with a screen reader on a PC from their website, but none of the apps work with tablet screen reader…you can easily see how these changes can dramatically reduce the effectiveness of the ADA, and create a situation where meaningful compliance might taker years!

To put this in perspective, the Internet’s World Wide Web (the www in a website’s address) was created in 1989, and there was nothing inherently inaccessible about the markup language used to create websites and webpages. The development of the first screen reader pre-dated the web by three years, in 1986. The ADA was signed into law in 1990. Even though developers and website owners may have spent little time in the last 30 years designing their products to be inclusive, there has been very little reason for them not to be, in the case of this technology.

The often cited claim that bringing a website into compliance for accessibility will take a great deal of time or cost significant amounts of money, completely overlooks the fact that these accessibility laws and guidelines have been around for years! In the case of Greyhound, one might ask why they built a website post ADA that was not accessible to all their customers in the first place, and why minimally, didn’t they eliminate the service fee for those customers unable to use their inaccessibly designed website?

Drive-by Lawsuits: Possible Reason for H.R. 620

It is speculated that H.R. 620 was drafted in response to what some have called, "drive-by lawsuits," by law firms trying to drum up business for themselves by trolling around for inaccessible public places, including websites. Remember, these ADA lawsuits are not eligible for financial damages to the individual denied equal access, just the legal fees for the suit. For that reason H.R. 620 might be more effective by targeting the law firms contaminating the intent of the ADA with questionable lawsuits. In fact, H.R. 620 appears to eliminate the effectiveness of the ADA through vague standards of compliance, undue additional hardship to file a complaint, and decreasing the incentive for businesses to consider inclusive design for all their potential customers.

How To Advocate Against H.R. 620

Be an advocate for the ADA! Oppose H.R. 620! If you need more information about this legislation and how it will negatively impact the ADA, check out the Disability Rights Education and Defense Fund’s page, "Save the ADA," where you’ll find plenty of additional resources and suggestions for action. Pick up the phone and call the Capitol switchboard at (202) 224-3121 to be transferred to your representative where you can leave a message or speak with someone about your thoughts on this proposed legislation. For more specifics on how to advocate, read AFB's DirectConnect newsletter.

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